Sechrest v. State

• Decision Date: 20 February 1992
• Docket Number: No. 21827,21827
• Citation: 826 P.2d 564,108 Nev. 158
• Parties: Ricky David SECHREST, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 564

826 P.2d 564

108 Nev. 158

Ricky David SECHREST, Appellant, v. The STATE of Nevada, Respondent.

No. 21827.

Supreme Court of Nevada.

Feb. 20, 1992.

Robert Bruce Lindsay, Reno, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Dorothy Nash Holmes, Dist. Atty. and Gary H. Hatlestad, Deputy Dist. Atty., Washoe County, Reno, for respondent.

OPINION

PER CURIAM:

Ricky David Sechrest was convicted of the brutal 1983 slayings of two young girls and sentenced to death. We affirmed Sechrest's judgment of conviction and sentences in Sechrest v. State, 101 Nev. 360, 705 P.2d 626 (1985). Sechrest now seeks to overturn his death sentences through post-conviction relief by asserting that he received ineffective assistance of counsel at the penalty phase of his trial. The district court determined that Sechrest's counsel had indeed performed deficiently, but denied relief because Sechrest had failed to show any prejudice resulting from his counsel's performance. After careful consideration, we affirm the decision of the district court.

Background

The primary witness for the State at the penalty phase of Sechrest's trial was Lynn M. Gerow, a psychiatrist. Gerow had originally been appointed as an expert by the court at the request of defense counsel. Gerow had examined Sechrest and submitted a report of his findings to defense counsel. The defense decided not to call Gerow as a witness in the penalty phase, but acquiesced to the State's request to call Gerow. Among other things, Gerow's testimony indicated that Sechrest was an incurable sociopath, who had an extensive history of criminal activity and drug use.

In a hearing before the district court, Sechrest sought to establish that he was denied his sixth amendment right to effective counsel because of his attorney's failure to prevent Gerow from testifying for the State. The district court determined that defense counsel's performance was substandard in that he failed to interview Gerow before the penalty phase in order to evaluate the possibly damaging effect of Gerow's testimony (defense counsel did communicate with Gerow several times before the State indicated its desire to use Gerow as a witness). Despite its determination that defense counsel's representation was deficient, the district court denied relief because Sechrest had failed to demonstrate that he had been prejudiced by his attorney's performance. This appeal followed.

Discussion

Sechrest contends that the district court erred by requiring him to show that he was prejudiced by his counsel's derelictions. Sechrest nevertheless concedes that sixth amendment ineffective assistance of counsel claims are generally governed by the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by this court in Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984). Under Strickland standards, a defendant raising a claim of ineffective assistance of counsel must establish that counsel's performance was deficient and that the deficiency prejudiced the defense. 466 U.S. at 687, 104 S.Ct. at 2064. However, Sechrest contends that his claim warrants a fifth amendment analysis because defense counsel facilitated the violation of Sechrest's fifth amendment right against self-incrimination by permitting Gerow to testify about his psychiatric examination of Sechrest. A fifth amendment analysis would shift the burden to the State to prove beyond a reasonable doubt that any constitutional errors were harmless. Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

A state risks violating fifth amendment rights by seeking to enhance its prospects for a death verdict through the introduction of statements made by the defendant during the course of a court-ordered psychiatric examination. Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). When such statements are wrongfully used, the state is required to prove beyond a reasonable doubt that the error was harmless. Satterwhite; Chapman.

In the instant case, however, the defendant's statements were not improperly obtained or used. Dr. Gerow's psychiatric examination of Sechrest was ordered at the request of the defense. The State later sought and obtained permission to use Gerow's testimony during the penalty hearing. In contrast, Satterwhite and Estelle involved situations where defense counsel was not the moving force behind the psychiatric examination that was introduced over the objection of counsel. Additionally, the trial courts in Satterwhite and Estelle were required by Texas law to impose the death penalty if the jury answered certain questions affirmatively, including the question of whether the defendant posed a continuing threat to society. The psychiatric testimony in those cases addressed the latter question, and thus impacted a crucial issue. In contrast here, although Gerow opined that Sechrest would not change, Nevada has not designated future dangerousness as an aggravating circumstance upon which the death penalty may be considered. NRS 200.033.

Gerow's testimony did not implicate any of the aggravating circumstances which were found by the jury as a basis for the imposition of the death penalty. Sechrest's statements were properly communicated to Gerow, and introduced with the consent of defense counsel. Neither federal nor state law supports an assertion that Sechrest's fifth amendment rights were violated. Thus, the issue is one of ineffective assistance of counsel to which the Strickland test applies.

As noted above,...